409 F.

3d 1277

UNITED STATES of America, Plaintiff-Appellee,

v.
Louis Steven PETHO, Defendant-Appellant.
No. 04-15412 Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

May 18, 2005.

Chet Kaufman and Randolph P. Murrell, Fed. Pub. Defenders,

Tallahassee, FL, for Defendant-Appellant.
Terry Flynn, E. Bryan Wilson, U.S. Atty., Tallahassee, FL, for PlaintiffAppellee.
Appeal from the United States District Court for the Northern District of
Florida.
Before BARKETT, HULL and WILSON, Circuit Judges.
PER CURIAM:

Louis Steven Petho appeals his sentence after pleading guilty to bank robbery,
inviolation of 18 U.S.C. 2113(a). On October 13, 2004, the district court
sentenced him to 37 months' imprisonment. On appeal, Petho claims that his
sentence violates United States v. Booker, 543 U.S. ___, 125 S.Ct. 738, 160
L.Ed.2d 621 (2005) because it was improperly enhanced based on facts that he
did not admit and that were not found by a jury beyond a reasonable doubt. He
also argues that we should overrule United States v. Murphy, 306 F.3d 1087
(11th Cir.2002), and find that a note indicating the presence of a weapon does
not constitute a threat of death for the purposes of 2B3.1(b)(2)(F) of the
Sentencing Guidelines. We find no reversible error and therefore affirm his
sentence.

On April 26, 2004, Petho entered the Hancock Bank in Tallahassee, Florida,
and handed a teller a note that said, "I have an explosive device. Please give me
all your 100's, 50's and 20's." The teller gave him $4,140.00, and Petho left the

bank. He turned himself in to the FBI on May 14, 2004, and provided a written
statement admitting to the robbery. He later pled guilty to one count of bank
robbery.
3

Under the Sentencing Guidelines, the base offense level for bank robbery is 20.
The Presentence Investigation Report ("PSR") prepared by the United States
Probation Office recommended a two-level enhancement because Petho took
the property of a financial institution, and another two-level enhancement
because the note he handed the teller constituted a threat of death. The PSR
also recommended a three-level adjustment for acceptance of responsibility
because Petho turned himself in and pled guilty. The PSR thus calculated a total
offense level of 21, with a guideline imprisonment range of 37 to 46 months.

Petho objected to the PSR's recommendation of an enhancement for making a

threat of death. At sentencing, he renewed that objection, and also filed an
objection under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159
L.Ed.2d 403 (2004). On appeal, Petho argues that his sentence violates Booker,
which extended Blakely to the Federal Sentencing Guidelines, and also that the
Eleventh Circuit should overrule its precedent in United States v. Murphy to
hold that a note indicating the presence of a weapon does not constitute a threat
of death.

Because Petho preserved his Blakely/Booker claim at sentencing, we review

that claim for harmless error. United States v. Paz, 405 F.3d 946 (11th
Cir.2005). Non-constitutional error is harmless when it does not affect the
substantial rights of the parties. See 28 U.S.C. 2111; United States v. Guzman,
167 F.3d 1350, 1353 (11th Cir.1999). Under this standard, we must reverse
"only if [the error] resulted in actual prejudice because it had substantial and
injurious effect or influence" on Petho's sentence. See id. (internal quotation
marks omitted); see also Kotteakos v. United States, 328 U.S. 750, 776, 66
S.Ct. 1239, 90 L.Ed. 1557 (1946).

There was error here because Petho was sentenced under a mandatory
guidelines system.1 See United States v. Shelton, 400 F.3d 1325, 1330 (11th
Cir.2005). However, when the district court sentenced Petho, it commented that
"[t]he sentence I'm going to impose of 37 months is the same sentence that I
would impose if Blakely were applied to the Federal Sentencing Guidelines so
that the guidelines were non-binding." The court's comment establishes that the
mandatory nature of the guidelines in place at the time of sentencing did not
affect Petho's sentence. Thus, we find that the Booker error was harmless.
Petho also argues that we should overrule our decision in United States v.

Petho also argues that we should overrule our decision in United States v.
Murphy and hold that a note indicating the presence of a weapon does not
constitute a threat of death. See 306 F.3d at 1089. 2 We cannot do so, however,
because we are bound by the ruling of the prior panel. See United States v.
Hogan, 986 F.2d 1364, 1369 (11th Cir.1993) ("It is the firmly established rule
of this Circuit that each succeeding panel is bound by the holding of the first
panel to address an issue of law, unless and until that holding is overruled en
banc, or by the Supreme Court.").

Thus, because we find no reversible error, we affirm Petho's sentence.

AFFIRMED.

Notes:
1

Petho alleges that the error was constitutional, rather than statutory, claiming
that the district court violated his Sixth Amendment rights by enhancing his
sentence based on facts that were neither admitted nor found by a jury.
Specifically, he challenges his sentencing enhancements for making a threat of
death and for taking property of a financial institution. We find no merit in this
argument
Petho admitted in his written statement and again at his plea colloquy that he
took money from the bank after handing a teller a note that said he had an
explosive device. The determinations that the bank was a financial institution
and that the note constituted a threat of death were not factual findings, but
legal conclusions properly made by the court. See United States v. Murphy, 306
F.3d 1087, 1089 (11th Cir.2002). Because Petho admitted to the facts
underlying these enhancements, there is no Sixth Amendment error.

He argues that we should instead follow the dissent inUnited States v. Clark,
294 F.3d 791 (6th Cir.2002).